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PolitiFact VA: Good's claim invents a position for Ketanji Brown Jackson

Person gestures while speaking into microphone
Rep. Bob Good (R-Va.) speaks at a 2020 campaign event. (Photo: Crixell Matthews/VPM News)

Speaker: Rep. Bob Good
Statement: Ketanji Brown Jackson “believes in abortion on demand up to the moment of birth.”
Date: March 22
Setting: Radio interview

Rep. Bob Good (R-Va.) recently said Supreme Court nominee Ketanji Brown Jackson “detests the constitution” and essentially thinks there should be no restrictions on abortion.

“Here’s someone…who believes in abortion on demand up to the moment of birth,” Good said during a March 22 interview on the The John Frederick Show, a conservative broadcast.

Good, a self-described “biblical conservative,” represents Virginia’s 5th Congressional district spanning from Danville north past Charlottesville to Warrenton. The chief problem with his claim centers on his use of the phrase “abortion on demand.”

The landmark Roe v. Wade court ruling doesn’t grant the right to an abortion on demand up to the moment of birth. It basically protects the right until a fetus can survive outside the womb, often at the 23rd or 24th week of pregnancy. After that, states may ban abortions, but they must leave an exception if a doctor determines one is needed to protect the life or health of a mother.

In other words, Roe and subsequent Supreme Court decisions upholding Roe did not establish an unfettered path to rare late-term abortions, let alone to “abortion on demand up to the moment of birth.”

Jackson’s record on abortion rights

Jackson has “a scant record” on abortion and has “never ruled on an abortion case,” according to the American Bar Association’s journal.

Like many other judicial nominees, she won’t say whether she thinks Roe and other Supreme Court precedents were properly decided. “I have a duty to refrain from critiquing the law that governs my decisions,” she said in 2021 when Roe came up in her confirmation hearings for a U.S. Court of Appeals judgeship.

In this year’s hearings, Jackson has indicated that she’d be reluctant to tinker with Roe. She said Roe and other Supreme Court rulings affirming it are “settled law, ” and “all precedents of the Supreme Court must be respected.”

Good’s argument

We asked Good to back his claim that Jackson supports “abortion on demand up to the moment of birth.” His office sent us four talking points. None of them offers an opinion or statement by Jackson on Roe nor shows a desire by her to allow unrestricted abortions until the moment of birth. Here are Good’s points:

  • Jackson clerked for Supreme Court Justice Stephen Breyer in 2000 when he wrote the majority opinion in Stenberg v. Carhart. The court struck down a Nebraska law that banned “partial-birth” abortions because its penalties created an undue burden on a “woman’s right to choose.” Also, the law did not have an exception for when a mother’s health was endangered. Good’s office wrote, “At no time has Judge Jackson repudiated that opinion as one she disagreed with.”
  • As a private-practice lawyer in 2001, Jackson co-wrote an amicus brief supporting a successful defense by women’s groups of a Masachussetts law barring protestors from blocking the entrances of abortion clinics. Good’s office noted that one of the groups behind the suit was pro-abortion-rights NARAL and said Jackson’s brief advocated banning “pro-life Americans from exercising their free speech rights to protest.” Jackson’s brief, however, specifically notes that the ban is content-neutral; its provisions apply to any protestors who block free entrance into clinics regardless of what they are protesting.
  • “NARAL endorses Judge Jackson’s nomination to the Supreme Court,” Good’s office noted.
  • “In her testimony…(Jackson) affirmed her commitment to the right to an abortion as created by Roe v. Wade and refused to provide any opinion on what viability is or whether that ‘line’ could move based on medical science,” Good’s office wrote. Jackson did decline to answer a question on moving the line, noting that the Mississippi case pending in the high court - which she might have to rule on - raises that issue.

Our ruling

In October 2020, PolitiFact gave a False rating to then-Vice President Mike Pence’s claim that Joe Biden and Kamala Harris support abortion “up to the moment of birth.” The Democratic running mates hadn’t made that statement and said they supported Roe.

Good goes beyond Pence’s claim. He says Jackson “believes in abortion on demand,” which means all abortions sought - anytime in pregnancy - would be granted.

Jackson has never said that. She’s never ruled on abortion rights. She won't say whether she thinks Roe v. Wade was properly decided.  What she has said is that Roe and other Supreme Court rulings affirming it are “established law,” and that she will respect high court precedents in all of her decisions.

Roe allows states to ban rare late-term abortions and “partial-birth abortions” if they provide exceptions when a doctor determines a mother’s life or health is endangered by her pregnancy. The most we know is that Jackson will respect that precedent. Good’s statement says, with no credible evidence, that Jackson wants to scuttle precedents allowing these late-term bans.

We rate Good’s statement Pants on Fire!

Sources:
Bob Good, Radio interview on The John Frederick Show,” March 22, 2022 (10:25 mark)
Email from Mattie Nicholson, Good’s communication director, March 25, 2022
Legal Information Institute, “Dobbs v. Jackson Women’s Health Organization,” accessed March 25, 2022
ABA Journal, “What is Jackson's record on reproductive rights? Anti-abortion groups oppose her Supreme Court nomination,” March 16, 2022
JUSTIA, “Planned Parenthood of Southeastern Pa. v. Casey,” 1991
Kaiser Family Foundation, “Abortions Later in Pregnancy,” Dec. 5, 2019
Centers for Disease Control, “Abortion Surveillance — United States, 2019,” Nov. 26, 2021
Legal Information Institute, “Stenberg v. Carhart,” 2000
Ketanji Brown Jackson, Amicus brief, Jan. 29, 2001
Jackson, Testimony at Senate Judiciary Committee hearing
Jackson, Response to questions on the record,” 2021
NARAL, Endorsement of Jackson for the Supreme Court, March 23, 2022 (6:40 mark)